Employers hire based on the representations of employees, and their curriculum vitae as well as during the interviews. A good hiring process follows through by requesting recommendations from the contacts provided by the Employee. In some instances, the feedback and/or recommendations will come before the hiring decision is made, but in most cases, the much-needed feedback never comes back and if it does, it will be way after a decision has been made.
Unfortunately, dishonest job-seekers have taken advantage of this gap and the inability of employers to verify and conduct extensive due diligence, to provide false information regarding their qualifications and general work experience in order to get employment opportunities.
Does the question then become what is an employer to do upon the discovery of the misrepresentations, omissions and/or falsified CV’s? Does it amount to an offence warranting disciplinary proceedings and eventual termination? Can an employer recover the salaries paid to such an employee? Is there a timeframe within which such a discovery is to be made? Is there a legal basis and/or framework for the verification of qualifications presented to employers?
EMPLOYERS OPTIONS UPON DISCOVERY OF FALSIFIED CV AND QUALIFICATIONS OF AN EMPLOYEE
The general understanding is that the employment relationship is governed by an implied term of mutual trust and confidence between the employer and employee and as such lying on a CV can give rise to a repudiatory breach of this term, giving the employer a right to terminate the employment relationship. An employer can equally claim for misrepresentation and fraud. Employment Courts in Kenya have generally held in a favour of an employer who has been able to demonstrate that the termination of the employment relationship was occasioned by the dishonesty of an employee at the time of recruitment through falsified CV and/or qualifications. However, for an employer to succeed in this, the right procedure has to be followed, as demonstrated below. The Employment Court in Nurwin Fozia Rajab vs Nzoia Sugar Company Limited [2019] eKLR held that the information contained in the curriculum vitae of the Claimant amounted to a fraudulent misrepresentation meant to place her in better stead in procurement matters than she had actually performed in the six (6) years period.
The fact pattern of the above case was that the Claimant had stated in her curriculum vitae under the employment history that from: October 2005-to date: Moi University Eldoret Senior Assistant Procurement Officer. A month after employment of the Claimant, the Respondent requested for reference of the Claimant from her previous employer-Moi University. The letter of reference came wherein Moi University gave an account of the work history to comprise of Public Relations Assistant which included administrative duties. Whilst the letter recommended the Claimant for employment in the position of Purchasing Manager, it did not indicate that the Claimant had been appointed in the position of Senior Assistant Procurement Officer as she had indicated in her curriculum vitae. This would trigger a show cause notice leading to subsequent dismissal. The Claimant challenged the dismissal for want of fairness and valid reasons for dismissal, however, the Court upheld the upheld and dismissed the suit stating that the Claimant had consciously and repeatedly described her work history, experience and responsibilities in a manner that was not only inaccurate, but also had wrongly described the position she substantively held at the time of the recruitment, with an intent to place herself in better stead in procurement matters as compared to other applicants.
REASON FOR TERMINATION AND PROCEDURE TO BE FOLLOWED
An employer, upon discovery of the falsification of documents and/or qualifications by an employee, is required to institute disciplinary proceedings in accordance with the provisions of the Employment Act, 2012. Section 41 of the Employment Act sets out in mandatory terms that an employer must do before terminating an employment relationship and any departure from these provisions will entitle the employee to a claim for unfair and unlawful termination. As such, a notice to show cause and a subsequent disciplinary hearing is as of right guaranteed to all employees, including the one who lied about his qualifications for the job.
The procedure to be followed in termination is intrinsically linked to the reason for termination, which section 43(2) as read together with section 45(2) (a) and (b) of the Act places the burden of proving the validity and fairness of the reason on the employer. The offence for misrepresentation of qualifications and/or experience can either fall under a misconduct or a gross misconduct depending on the classification of the offence in the employer’s disciplinary manual/code of conduct. As such, an employee MUST be given an opportunity to either explain himself/herself away or produce supporting evidence of the alleged misrepresentation. In the case of Rose Sang Tarus vs Barclays Bank of Kenya Limited [2020] eKLR the Court upheld the claim for unfair termination on the basis of the fact that the reason for termination, being misrepresentation on the basis of the information given to the Respondent regarding her career growth, was never canvassed during the disciplinary hearing so as to occasion the Claimant an opportunity to explain the same.
In the above matter, and with respect as to whether the alleged misrepresentation amounted to a fundamental breach of the mutual trust and honesty, the Court cited with approval the finding in Michale Dowling v Workplace Safety and Insurance Board [2004] CAN LII 43692 at page 74 where it was held that:
“whether an employer is justified in dismissing an employee on the grounds of dishonesty is a question that requires an assessment of the context of the alleged misconduct. More specifically, the test is whether the employee’s dishonesty gave rise to a breakdown in the employment relationship. One could say, for example, just cause for dismissal exists where the dishonesty violates an essential condition of the employment contract, breaches the faith inherent to the work relationship, or is fundamentally or directly inconsistent with the employees’ obligation to his or her employer”.
In the Barclays Bank case the Court held that the alleged dishonesty was invalid and taken out of context by the respondent and did not amount to a valid reason for termination.
WHETHER OR NOT AN EMPLOYER CAN RECOVER MONIES PAID TO THE EMPLOYEE WHO FORGED THEIR QUALIFICATIONS
Whilst Section 19[1] of the Employment Act 2007 allows employers to deduct any amount paid to an employee in error as wages in excess of the amount of wages due to him, the same has not been tested in the context of hiring based on erroneous representations as to qualifications of an employee. Similarly, it would be very difficult to effect these deductions in a practical sense. It is noteworthy that no dispute has been taken to Court by an employer on the basis of misrepresentations and/or counter-claim for monies earned. Most disputes that we came across touching on this subject have been instituted by employees challenging the fairness of the dismissal process and the same are countered by the justification of the reason for termination.
Justice Rika in Sunil Kumar Chhabra vs G4S Security Services Limited [2013] eKLR dealing with a different issue of claw back of bonuses paid to an employee held that claw back is not a concept that is common in employment relationships and there is no legal provision for the same.
One has to wonder if courts would allow a claim for claw back of illegally earned salaries arising from intentional misrepresentation for purposes of an employee securing an employment position.
IS THERE A TIME LIMIT AS TO THE TERMINATION UPON DISCOVERY?
The general position is that an employer can terminate the employment relationship at any time upon the discovery of the of the alleged misrepresentation. In the case of Nzoia Sugar Company the employer initiated disciplinary proceedings two years from the date when a reference letter was sent to them. According to the Court, whilst the procedure for termination was duly followed, the lapse in time meant that the Respondent (employer) had slept on its rights and as such any claim would prejudice the claimant due to the delay.
It is therefore advisable that immediate disciplinary proceedings are initiated upon the discovery of the misrepresentation so as to allow for any reimbursable and/or claw-back claims-if at all inclusive of general damages for misrepresentation.
